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In Dickinson v. St. Cloud Hospital, No. 07-3346 ADM/RLE (D. Minn. Oct. 20, 2008), the court addressed the interaction of the FMLA with attendance policies based on absenteeism percentage rates. In that case, the Hospital had separate policies for FMLA and non-FMLA absences. For non-FMLA absences, an employee could be subject to discipline for exceeding a 4% absenteeism rate. The absenteeism rate was calculated by dividing the number of hours an employee is absent by the scheduled hours of the employee. FMLA absences are not factored into the absenteeism rate.

Dickinson was terminated for having a non-FMLA absenteeism rate of 7.12% for the period November 6, 2005 to March 25, 2006. Prior to that, Dickinson had used FMLA leave for problems with her kidneys. She had also been subjected to several levels of progressive discipline for exceeding the 4% absenteeism rates during various periods over the last several years.

Dickinson sued, alleging that the Hospital interfered with her FMLA rights by the manner in which it calculated her non-FMLA absenteeism rate. Specifically, Dickinson argued that FMLA leave must be included in the denominator of the absenteeism calculation because failing to do so causes the negative effect of increasing her absenteeism rate. The Hospital argued that it did not interfere with her rights because it treats FMLA leave neutrally by excluding it from both the numerator and the denominator.

Agreeing with Dickinson, the court observed:

As a ".9" employee, Dickinson was scheduled to work 1,872 hours per year. To remain below the 4% absenteeism rate required by [the Hospital], she could only miss 74.88 hours of work a year (74.88/1872 = 4%). Applying the method by which [the Hospital] calculates the absenteeism rate means that if Dickinson takes 100 hours of FMLA leave as well as 74.88 hours of non-FMLA leave, her absenteeism rate rises above 4% (74.88/1772 = 4.22%).

The court concluded that, under the Hospital's policy, employees who elect to take FMLA leave may be allowed fewer non-FMLA absences. As such, the policy uses the taking of FMLA leave as a negative factor, which is prohibited by the Act.

Comment: Employers with attendance policies based on non-FMLA leave absenteeism percentages need to ensure that FMLA leave usage is completely factored out of the calculation. WARNING: THIS MAY REQUIRE MATH SKILLS.

The court went on to find that the Hospital could still prevail if it could show that it would have terminated Dickinson even if she had not exercised FMLA rights. To do so, the Hospital, the court opined, would need to demonstrate the Dickinson 's absenteeism rate would be above 4% over the time period used to determine the rate even with FMLA leave factored into the denominator. The court ultimately found material facts in dispute on the issue and denied employer's motion for summary judgment.